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the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[4]

Copyright Clearance Center Vice President, General Counsel and Secretary Frederic Haber, who told us, “In the Copyright Act of 1976, Congress finally enshrined fair use in statute, but did not define it because what is fair use and what is not vary so widely with circumstances. Instead, Congress adopted and refined a test that judges had been developing over the years, directing a court to look at all the circumstances surrounding a use and make a judgement as to the appropriate way that a copyright holder’s rights and a user’s fair use privilege can best be balanced. That’s the famous ‘four factor’ test of Section 107 of the Copyright Act.”

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